Kerala High Court
Balakrishnan P vs Latha A C on 10 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 10TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946
MAT.APPEAL NO. 1041 OF 2024
AGAINST THE ORDER DATED 09.10.2024 IN RESTORATION PETITION
36/2024 IN OP NO.212 OF 2022 OF FAMILY COURT, KASARAGOD
APPELLANT/PETITIONER/PETITIONER:
BALAKRISHNAN P, AGED 56 YEARS
S/O LATE GOVINDAN NAIR , 'SREELAKOM
HOUSE', MALAYINKEEZHU POST,
THIRUVANATHAPURAM DISTRICT,
PIN - 695571
BY ADVS.
R.PREMCHAND
A.A.DILSHAH
M.VEENA
RESPONDENT/RESPONDENT/RESPONDENT:
LATHA A C, AGED 46 YEARS, D/O A C SREEDHARAYAR,
CHEENAPADY HOUSE, SIVAGIRI, KAVUNGAL, URDUR
POST , KASARGOD NOW RESIDING IN THE HOSTEL
ATTACHED TO CHITHRA HOSPITAL, VIDYA NAGAR,
KASARGOD, PIN - 671121
BY ADVS.
SANTHOSH KUMAR V.P.
SAJEEVAN KURUKKUTTIYULLATHIL(K/998/2002)
VISHNU PRABHAKAR V.S.(K/001463/2018)
SUNIL M.S.(AP/2037/2005)
ASHWIN K.U.(K/001285/2018)
AKSHAY SHYLESH(K/2354/2022)
ADWAITHA UDAYAN(K/003492/2023)
RASHMI K.R.(K/001151/2018)
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Mat Appeal 1041/24
2
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 10.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Mat Appeal 1041/24
3
JUDGMENT
Devan Ramachandran, J.
The appellant has filed O.P.No.212/2022 before the learned
Family Court, Kasaragod, seeking permanent custody of his
daughter, but the same was dismissed on 04.03.2024 for default.
He, thereupon, filed R.P.I.A.No.36/2024, invoking the provisions
of Order 9 Rule 9 of the Civil Procedure Code (CPC), seeking
that the Original Petition be restored, after setting aside the
order of dismissal.
2. The appellant alleges that the impugned order of the
learned Family Court is without forensic basis, because it did not
take into account the factum of him having been incapacitated to
appear before it at the time when the Original Petition was
posted for trial, on account of a grievous illness. He argues that,
though he filed his proof affidavit in lieu of chief examination on
01.02.2024, he could not present himself for cross-examination,
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when it was next listed because, he had a cardiac arrest and was
advised surgery. He adds that the said surgery could not be
performed because he had other comorbidities; and therefore, had
to take expert opinion from the 'Sree Chithira Thirunal Institute
of Medical Sciences'.
3. The petitioner further says that, he developed cardiac
pain again on 22.02.2024, when he went to his hometown to
meet his ailing mother and was thus advised complete rest,
forcing him to be at his ancestral home; subsequent to which, on
01.03.2024, he underwent an MRI scan and was advised further
treatment. He has produced the prescription and the medical
certificates of a particular doctor, dated 22.03.2024; as also the
referral report from the Sree Chithira Thirunal Institute of
Medical Sciences, along with the case summary and medical
records, in corroboration of his case; but the learned Family
Court rejected his request, holding that his explanation cannot be
believed because, his counsel did not report on 24.02.2024 that
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he had a cardiac issue, nor an application for adjournment was
sought, even though he himself had obtained an order for
expeditious disposal of the Original Petition from this Court in
O.P.(FC)No.298/2022. The learned Family Court further recorded
that, as per the directions of this Court, the matter was to be
disposed of on or before 31.03.2024; and therefore, that it had
no other option, but to dismiss the same, as has been done.
4. Sri.R.Premchand - learned counsel for the appellant,
vehemently argued that the course adopted by the learned Family
Court has caused his client grave prejudice, particularly because
he is a father seeking custody of his daughter. He then reiterated
that his client was incapacitated from appearing before the
learned Family Court on 24.02.2024, which is evident from the
fact that he had a cardiac arrest in February 2024; but conceding
that, perhaps, due to an inadvertent omission, or a
communication error, the same may not have been placed to the
attention of the learned Family Court, when the matter was
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taken up. He contended that, even if this be so, the factum of
his client having actually gone through a serious medical
condition should have been enough for the learned Family Court
to have found in his favour, notwithstanding the fact that this
Court had fixed 31.03.2024 to be the last date for disposal of the
Original Petition. He argued that this date would be of no
relevance when his client moved application for restoration of the
Original Petition because, the facts and circumstances stood
altered, as evident from the assertions made in the affidavit filed
in support. He thus prayed that the impugned order be set aside
and the learned Family Court be directed to take up
O.P.No.212/2022 and dispose it of on merits.
5. Sri.Vishnu Prabhakar V.S. - learned counsel for the
respondent, however, submitted that no fault can be attributed
against the learned Family Court because, the appellant himself
had approached this Court earlier, through O.P.(FC)No.298/2022,
to obtain a judgment dated 06.12.2023, wherein, the learned
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Family Court was directed to dispose of the Original Petition on
or before 31.03.2024. He argued that, when the appellant was
aware of this, his continuous refusal to appear before the learned
Family Court, citing one untenable reason or the other, can only
be seen to be a dilatory tactic; and therefore, that the impugned
order suffers from no vice.
6. We have considered the afore rival submissions, on
the touchstone of the materials available on record.
7. It is true that this Court had fixed 31.03.2024 as the
last date for disposal of the Original Petition by the learned
Family Court. In that view, the order of the learned Family
Court, dismissing the Original Petition on 04.03.2024, cannot be
found to be in fault, because the appellant admittedly did not
appear on the date he was asked to for the purpose of
examination.
8. However, when it comes to the restoration application,
as rightly argued by Sri.Premchand, what the learned Family
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Court ought to have considered was whether there was sufficient
cause for the appellant for not appearing on the dates he was
directed to; and if his explanation is credible or otherwise.
9. As we have indicated above, the petitioner says that
he suffered a cardiac arrest on 01.02.2024 and that he was asked
to obtain an opinion from the 'Sree Chithira Thirunal Institute of
Medical Sciences'. He says that, on 22.02.2024, he went to his
hometown, where he developed pain and was under rest for
another 10 days; following which, on 01.03.2024 he had to
undergo an MRI scan.
10. If the afore facts are true, then obviously, the life of
the appellant is more precious and valuable than the litigative
travel of the case. The appellant is stated to have produced
certain medical documents before the learned Family Court, but
these have not been considered by it, solely stating that had he
really had suffered any such medical condition as asserted, his
Counsel ought to have brought it to its notice, or to have filed
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an application seeking adjournment, so that it could have then
moved this Court for extension of time.
11. As said above, the impugned order of the learned
Family Court cannot be faulted to the extent to which it finds
that the appellant did not bring his condition to its notice at the
relevant time. However, when his medical condition is not under
challenge and when he has produced documents, to prima facie
establish that he perhaps might have been incapacitated from
appearing before the learned Family Court, we see no reason
why he should not be given one more opportunity. This is
nevertheless that this Court had fixed the time for disposal of the
Original Petition as 31.03.2024.
12. We are persuaded to the above view also because,
though the afore date was fixed by this Court, the Original
Petition was dismissed on 04.03.2024, which is nearly 25 days
prior to it. Of course, the learned Family Court was not in error
because the appellant had not brought to its notice that he was
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suffering from serious diseases or medical condition.
13. In the afore circumstances, we deem in necessary that
the appellant be given one more opportunity, particularly
because, as rightly argued by his learned counsel, the Original
Petition relates to claim for custody of his minor daughter.
Resultantly, we allow this Appeal and set aside the
impugned order of the learned Family Court, Kasaragod;
consequently, allowing R.P.I.A.No.36/2024 in O.P.No.212/2022.
Though, normally, this Court does not fix time frames for
disposal of Original Petitions, since we are aware that a date had
been earlier fixed as 31.03.2024, we deem it necessary that, in
this case, we deviate from the norm.
Resultantly, we direct the learned Family Court to
endeavour to dispose of the Original Petition within a period of
six months from the date of receipt of a copy of this judgment,
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after affording necessary opportunity to both sides.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
